On an almost daily basis, someone accuses Russia of committing war crimes in Ukraine. But if Russia is committing war crimes, what exactly are those crimes? And would there be a way to hold Russia to account?
The laws of war are part of the international rule of law and are found in many international treaties, conventions, and compacts. One of the most fundamental of those laws is Article 2(4) of the Charter of the United Nations, which provides that “all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.” The only exception is Article 51, which provides that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
Article 2(4) is the modern version of the concept of state sovereignty that originated in the 1648 Peace of Westphalia ending the Thirty Years War. Prior to that time, only rulers, princes, or clerics went to war; states as we know them did not exist, at least in the Western Hemisphere. Article 2(4) makes it clear that one sovereign state may not invade another sovereign state unless it is done in self-defense.
War crimes are violations of those parts of the laws of war that have been “criminalized” and are acts that international law deems universally criminal. In the words of Kevin J. Heller of the Australian National University, they are crimes that “every state in the world has independently decided to criminalize.”
There seems to be no doubt that Russia has clearly violated Article 2(4). There was no “armed attack” by Ukraine, and Russia was not otherwise acting in self-defense. Vladimir Putin’s claims that Ukraine’s application to join NATO represented a threat to Russia’s “very existence” and to its “state sovereignty” are preposterous. Not only is Russia’s invasion a clear violation of Article 2(4), but it is also a clear violation of the traditional law of war concept of jus ad bellum, which governs and limits the circumstances under which a war (or here an invasion of another sovereign state) may be undertaken.
Nor is there any doubt that Russia’s conduct in Ukraine violates the companion principle of jus in bello, which regulates the conduct of belligerents already at war. This concept probably came from the writings of St. Thomas Aquinas, who modified St. Augustine’s “just war” theory. The modern articulation of the concept comes largely—but not entirely—from the four Geneva Conventions of 1949 and their three subsequent Protocols.
Although the concepts of jus ad bellum and jus in bello have been around for centuries, the phrase “war crimes” is a relatively recent addition to our lexicon; it did not appear in print until 1872 and then only in passing. The Nuremberg trials were the first in the modern era to try individuals for war crimes. Because the UN Charter was not yet in place, an ad hoc tribunal was created and given the power to try individuals for crimes against peace, war crimes, and “crimes against humanity.”